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State v. Kilgore

Court of Appeals of Oregon

January 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
THADDEUS LEE KILGORE, Defendant-Appellant.

          Submitted September 28, 2018.

          Yamhill County Circuit Court 17CR04970, 17CR22754. John L. Collins, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Landau, Senior Judge.

         Case Summary: Defendant was convicted of various crimes in two separate cases and sentenced to probation. On appeal of the resulting judgments, he assigns error to the imposition of a special condition of probation in one of the cases that prohibits him from consuming or possessing marijuana. He contends that the condition violates ORS 137.542(2), which provides that the conditions of supervision of a person who holds a medical marijuana registry identification card must be imposed in the same manner as those related to prescription drugs. The state concedes that the trial court erred in imposing the condition without making the necessary factual determination. Held: Because the challenged special probation condition appeared for the first time in the judgment, defendant did not have an opportunity to address whether he held a registry identification card, thus triggering ORS 137.542(2). Accordingly, the case must be remanded for resentencing for the trial court to make that determination and, if so, to modify the condition to comply with the statute.

         [295 Or.App. 603] In Case No. 17CR22754, remanded for resentencing; otherwise affirmed. In Case No. 17CR04970, appeal dismissed as moot.

         [295 Or.App. 604] ARMSTRONG, P. J.

         In this consolidated appeal, defendant appeals judgments convicting him of two counts of fourth-degree assault and one count of strangulation (Case No. 17CR22754) and two counts of menacing (Case No. 17CR04970).[1] In each case, defendant was sentenced to probation. Defendant's sole assignment of error relates to the trial court's imposition of a special probation condition on his counts of conviction in Case No. 17CR22754 that defendant "not consume or possess * * * marijuana."[2] Defendant contends that such a complete ban on the consumption and possession of marijuana is prohibited under ORS 137.542(2)[3] and requests that we strike the challenged probation conditions from the judgment, or, alternatively, modify the erroneous conditions to allow the use of medical marijuana. The state concedes that the trial court erred in imposing the conditions as it did, but points out that ORS 137.542(2) does not apply in all circumstances-that is, it does not apply where the defendant is not a medical marijuana cardholder-and, therefore, that we should remand for resentencing for the trial court to make that factual determination.[4] We agree with the state.

         As the parties recognize, and as we have recently held, the effect of ORS 137.542(2) is that a special probation condition regarding marijuana use must contain an [295 Or.App. 605] exception for marijuana use that complies with Oregon's medical marijuana laws, if the probationer holds a medical marijuana registry identification card. State v. Jerscheid, 294 Or.App. 564, 566, ___P.3d ___(2018); see also State v. Rhamy, 294 Or.App. 784, 431 P.3d 103 (2018) (accepting state's concession that trial court erred in imposing unqualified prohibition on defendant's ability to participate in Oregon's medical marijuana program in the absence of necessary determination). Because the special probation conditions at issue here appeared for the first time in the judgment, defendant did not have an opportunity to address that issue.[5] Accordingly, we remand for resentencing for the court to determine whether defendant holds a medical marijuana registry identification card, thus triggering the statute. If so, the court shall modify the special conditions to comply with the statute. See Rhamy, 294 Or.App. at 785 (remanding for resentencing where court failed to make determination necessary under ORS 137.542(2) to impose unqualified prohibition on defendant's participation in Oregon's medical marijuana program); cf. State v. Mack, 156 Or.App. 423, 429, 967 P.2d 516 (1998) (remanding for resentencing for court to determine whether conditions supporting imposition of sex-offender package under ORS 137.540(2) were established).[6]

         In Case No. 17CR22754, remanded for resentencing; otherwise affirmed. In Case No. 17CR04970, appeal dismissed as moot.

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Notes:

[1] In both cases, the convictions were based on defendant's guilty pleas, and other charges were ...


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